Will the Supreme Court krackle for Kirby?

If you saw the movie “Argo,” you know Jack Kirby as the guy who drew the storyboards of the sci-fi epic set on a Middle Eastern planet that helped the good guys escape the airport. Of course, if you’ve seen a Marvel Comics movie in the past few years, you know some of Kirby’s other work pretty well, too. He is the artist behind such seminal comic book characters as Captain America, Thor, Iron Man, many of the X-Men and the Fantastic Four. So, if these are some of the most profitable characters in entertainment today, why aren’t Jack Kirby’s heirs swimming in money like Scrooge McDuck (NOT a Kirby creation, by the way).

The answer, of course, has to do with copyright law. When Kirby co-created these characters with the likes of Joe Simon and Stan Lee, he was toiling for Marvel (formerly Timely) Comics in a work-for-hire situation. This distinction is at the crux of the legal matter here. In 2009, the Kirby heirs filed copyright termination notices on dozens of character, but the court ruled in favor of Marvel, citing Kirby’s work-for-hire status. The 2nd Circuit Court upheld that decision, and now the only ones who can save the day for the Kirby estate are nine heroes who wear robes instead of capes: The Supreme Court.

The good news for Kirby’s family is that a veritable legion of supporters have assembled around the case like the Avengers themselves. Many of the major Hollywood Guilds – actors, writers, directors and more – have filed briefs in support of the Kirby estate, noting that the current ruling “jeopardizes the statutory termination rights that many Guild members may possess in works they created.”

If the Supreme Court does decide to take up the case like Thor’s uru hammer, they will have to rule on the so-called “instance and expense” test, which is at the heart of the matter here. That test considers the amount of influence and money a company has in the creation of a work, as Kirby’s attorneys argued that the test “invariably finds that the pre-1978 work of an independent contractor is ‘work for hire’ under the 1909 Act,” and threatens certain provisions of the U.S. Copyright Act.

Senior Editor and Community Manager

Rich Steeves

Richard P. Steeves is Senior Editor and Community Manager of InsideCounsel magazine, where he covers the intellectual property and compliance beats. Rich earned a B.A....